The Subpoena, the Former Governor and the Emails

case arises in the midst of an
investigation by the federal government into activities of the former Governor
of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information
from the State of Oregon, much of which would be available to the general
public under Oregon's public records laws. But a wide net is susceptible to
snags.

For several years before Kitzhaber left
office, copies of his personal emails were archived on Oregon's computer
servers. According to Kitzhaber, he was unaware of the archiving of these
emails, which include many private details unrelated to his official duties
regarding him and his family, as well as private communications with his personal
attorneys and with attorneys for the State of Oregon. Because this cache would
be turned over to the government under the subpoena, Kitzhaber argues the
subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in
particular that the attorney-client privilege protects his communication with
attorneys for the State of Oregon regarding issues concerning possible
conflicts of interest and ethics violations. The government disclaims any
interest in Kitzhaber's communications with his personal attorneys but argues
it is otherwise entitled to everything it has requested.

In reGrand Jury Subpoena, supra.

The Court of Appeals went on to explain that John Kitzhaber

served as Governor of Oregon from 1995
until 2003, and again from 2011 until 2015. During this second period in
office, Kitzhaber declined to use an official email address provided by the
State of Oregon. Instead, he established an account with the commercial email service
Gmail, which he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers
emails sent to or from this `official’ Gmail address, and DAS complied.

In addition to his official Gmail
account, Kitzhaber had a personal Gmail account and another personal account
hosted at att.net. He checked all of these accounts from the same computer.
According to a member of the Governor's senior staff, Kitzhaber commonly used
his personal addresses `to communicate with senior staff for both personal and
state business.’

In February of 2015, Kitzhaber resigned
from office, surrounded by controversy over whether he had used his position to
benefit his fiancée, Cylvia Hayes. See Lee van der Voo and
Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis,
N.Y. Times, Feb. 14, 2015, at A1,
http://www.nytimes.com/2015/02/14/us/kitzhaber-resigns-as-governor-of-oregon.html.
Shortly before Kitzhaber's resignation, a federal grand jury issued a subpoena
to DAS as part of an investigation into the Governor's actions. The
subpoena asked DAS to provide `all information, records, and documents’ going
back to January 1, 2009, `relating to Kitzhaber, Hayes, and several businesses
and other entities. The subpoena also sought `any and all email communications
from or to, or regarding’ seventeen individuals, including Kitzhaber and Hayes.

In reGrand Jury Subpoena, supra.

The court went on to explain that,

[a]fter he left office, Kitzhaber
intervened in the grand jury proceedings, filing a motion to quash the subpoena
in the United States District Court for the District of Oregon. According to
Kitzhaber, shortly before resigning he discovered that DAS had been archiving
emails to and from his personal email accounts on state servers. Kitzhaber
asserted that DAS was not authorized to archive his emails from his personal
addresses, which he says contain a great deal of private communication,
including privileged communication with his personal attorneys. He challenged
the subpoena on the grounds that it was unreasonably broad; a violation of his
Fourth Amendment rights; and a violation of attorney-client privilege.

The district court ruled that
Kitzhaber's communication with his private attorneys over his personal email
addresses was protected by the attorney-client privilege and should not be
disclosed to the grand jury. The court directed the government to create a
“taint/filter team” to segregate the protected emails from the remaining
content generated in response to the subpoena and prevent the protected content
from reaching the jury. It ruled against Kitzhaber on every other issue. The
court held that third parties to a subpoena, like Kitzhaber here, may not
challenge the burden of production required to comply with the subpoena. It
also held that any potential Fourth Amendment violation could be raised only in
a suppression motion filed if Kitzhaber ends up being indicted and brought to
trial. And it held that the attorney-client privilege did not apply to
Kitzhaber's communication with government attorneys. The court therefore
declined to quash the subpoena. Kitzhaber timely appealed.

In reGrand Jury Subpoena, supra. A Wikipedia
entry explains what a motion to quash is designed to accomplish. And Rule 17(c)(2) of the Federal Rules of Criminal Procedure states that “[o]n motion
made promptly, the court may quash or modify the subpoena if compliance would
be unreasonable or oppressive.”

The Court of Appeals began its analysis of the arguments
Kitzhaber made on appeal by explaining that Kitzhaber

argues that the district court should
have quashed the subpoena in its entirety. We agree.

The subpoena includes emails on his
personal accounts that Kitzhaber reasonably expects to remain private, as they
do not concern public business. (Like the district court, we proceed on the
assumption that Kitzhaber did not authorize DAS to archive the emails from his
personal accounts). The subpoena does not exclude these communications or
otherwise limit the documents demanded to those within the scope of the
government's legitimate concern in conducting a thorough investigation of
Kitzhaber's conduct of official business. As a result, the subpoena is
unreasonably overbroad—analogous, that is, to a general warrant, which
constitutes an unreasonable search under the Fourth Amendment. See U.S.
v. Bridges, 344 F.3d 1010, 1916
(U.S. Court of Appeals for the 9th Circuit 2003). As such, the subpoena, as drafted, may not be
enforced.

In reGrand Jury Subpoena, supra.

The Court of Appeals went on to explain that the

`grand jury is, to a degree, an entity
independent of the courts, and both the authority and the obligation of the
courts to control its processes are limited.’ In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (U.S.
Court of Appeals for the 9th Circuit). But the normal rule of
noninterference is `not absolute.’ In
re Grand Jury Investigation of Hugle, supra. A subpoena is not
automatically valid `merely because the Constitution does not prohibit it and
the material [it seeks] is not privileged.’ U.S.
v. Bergeson, 425 F.3d 1221, 1226 (U.S. Court of Appeals for the 9th
Circuit 2005). Rather, courts may `exercise supervisory power over the grand
jury where there is a clear potential for a violation of the rights either of a
witness or of a nonwitness, if the violation cannot be corrected at a later
stage.’ In re Grand Jury
Investigation of Hugle, supra.

Here, there is a clear potential for
the violation of Kitzhaber's rights. `[A]n order for the production of books
and papers may constitute an unreasonable search and seizure within the 4th
Amendment.’ Hale v. Hennkel, 201 U.S.43, 76 (1906),abrogated in part on other grounds by Murphy v.
Waterfront Comm’n of New York Harbor,378 U.S. 52, 68 (1964). This can be true `whether under a search warrant
or a subpoena duces tecum.’ Hale v. Henkel, supra. When the government
crafts subpoenas, it must `make a reasonable effort to request only those
documents that are relevant and non-privileged, consistent with the extent of
its knowledge about the matter under investigation.’ In re Horn, 976 F.2d 1314, 1318 (U.S. Court of Appeals for the 9th
Circuit 1992). A subpoena without such tailoring is `equally
indefensible as a search warrant would be if couched in similar terms.’ Hale v. Henk, supra. Thus, where a grand
jury's subpoena, given its overbreadth, would itself violate the privacy interests protected by the Fourth Amendment, `[j]udicial
supervision is properly exercised in such cases to prevent the wrong before it
occurs.’U.S. v. Calandra, 414 U.S. 338, 346 (1974).

The district court concluded otherwise.
It was of the view that it was obliged to enforce the subpoena as long as there
was a `reasonable possibility that the category of materials the Government
seeks will produce information relevant to the general subject of the grand
jury's investigation,’ citing U.S. v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).

In reGrand Jury Subpoena, supra.

The opinion then goes on to explain that

R.
Enterprises held that where `a subpoena is challenged on relevancy grounds,
the motion to quash must be denied unless the district court determines that
there is no reasonable possibility that the category of materials the
Government seeks will produce information relevant to the general subject of the
grand jury's investigation. U.S. v. R.
Enterprises, Inc., supra. But R.
Enterprises does not suggest that by self-defining the `category of
materials’ sought as broadly as possible, the government insulates its
subpoenas from review. Otherwise, when the government seeks all material of a
broad generic type that a party possesses—every piece of paper in a
corporation's files, for example, or, as in this case, all of an individual's
emails over a several year period—a reasonable possibility that some of
that material would be relevant would suffice to validate the subpoena, no
matter how vast its sweep, and no matter the degree to which the subpoena would
reach private material of no pertinence to the grand jury's inquiry.

The reference to `category of
materials’ in U.S. v. R.
Enterprises, Inc., supra, confirms
that subpoenas typically designate for production a discrete `category’ of
materials. Where one does not, and there is a broad, identifiable `category of
materials the Government seeks [that] will [not] produce information relevant
to the general subject of the grand jury's investigation,’ U.S. v. R. Enterprises, Inc., supra,—here, for example, material about
Governor Kitzhaber's children or medical care—the subpoena is unreasonably
broad.

Our decisions in In re Horn, supraand United States v. Bergeson, supra,
confirm this understanding of R.
Enterprises. They make clear that a subpoena may be quashed when no effort
is made to tailor the request to the investigation, even if some fraction of
the material the subpoena seeks is relevant. See United States v. Bergeson, supra; In re Horn, supra.

In reGrand Jury Subpoena, supra.

The Court of Appeals went on to explain that the

government's subpoena in this case is
much broader than the subpoena we rejected in In re Horn, supra. In Horn, the subpoena at issue sought all
information regarding the financial transactions of a lawyer's clients. In re Horn, supra. Here, there is no subject matter limitation
whatsoever on the documents sought. The subpoena seeks, among other things, all
of Kitzhaber's e-mail communication over several years, with no limitation on
the content, senders, or recipients of the e-mails. As Kitzhaber points out,
the subpoena would net, for instance, `emails between [himself] and his son's
physicians or teachers.’

Notably, the government attached to the
subpoena a non-exhaustive list of the kinds of documents that might be included
in the data it sought. But the subpoena explicitly did not limit itself to that
material, so that list did not narrow the scope of the subpoena itself. At the
same time, by indicating the government's particular investigatory goals, the
list confirms that a narrowing of the subpoena in accord with that list would
not compromise the investigation.

Because the government did not in any
manner tailor its request to relevant material, the subpoena was unreasonably
broad and within the district court's supervisory power, and responsibility, to
quash.

In reGrand Jury Subpoena, supra.

The Court of Appeals went on to explain that

[w]e have previously held that email
should be treated like physical mail for purposes of determining whether an
individual has a reasonable expectation of privacy in its content. U.S. v. Forrester, 512 F.3e 500, 511
(U.S. Court of Appeals for the 9th Circuit 2008). While an email's
addressing information is visible to third parties and therefore not protected,
emails also contain `content that the sender presumes will be read only by the
intended recipient.’ U.S. v.
Forrester, supra.

We have also noted that electronic storage
devices such as laptops `contain the most intimate details of our lives:
financial records, confidential business documents, medical records and private
emails,’ and held that `[t]hese records are expected to be kept private and
this expectation is one that society is prepared to recognize as reasonable.’ U.S. v. Cotterman, 709 F.3d 952, 964
(U.S. Court of Appeals for the 9th Circuit). The Supreme Court, too,
has emphasized recently the ability of digital troves to contain `[t]he sum of
an individual's private life,’ and the corresponding need for our jurisprudence
to reflect the changing technological landscape. Riley v. California, 134 S.Ct. 2473 (2014). Personal email can, and
often does, contain all the information once found in the `papers and effects”’
mentioned explicitly in the Fourth Amendment. Kitzhaber thus has a strong
claim to a legitimate expectation of privacy in his personal email, given the
private information it likely contains.

In reGrand Jury Subpoena, supra.

The Court of Appeals went on to explain that the Oregon Department of Administrative Services' (DAS)

current possession of the emails does not vitiate that claim. `[T]he
Fourth Amendment protects people, not places.’ U.S. v. Davis, 332 F.3d 1163, 1167 (U.S. Court of Appeals for the 9th
Circuit 2003) (citation omitted). Kitzhaber's interests therefore attach to “the
thing[s] seized,” not merely to the place where they are located. U.S. v. Davis, supra. As we held
in Forrester, emails are to be
treated as closed, addressed packages for expectation-of-privacy
purposes. U.S. v. Forrester, supra. And
a person `does not forfeit [his] expectation of privacy merely because [a
private] container is located in a place that is not controlled exclusively by
the container's owner.’ U.S. v. Monghur,
588 F.3d 975, 978 (U.S. Court of Appeals for the 9th Circuit 2009).

The Fourth Amendment bars searches of closed containers even if they are not in their owners' possession. U.S. v. Davis, supra; U.S. v. Fultz, 146
F.3d 1102, 1105 (U.S. Court of Appeals for the 9th Circuit 1998). Where
a third party comes into possession of a closed container accidentally, the
Fourth Amendment bars the government from examining the contents of the
container beyond `the extent that [it] had already been examined by third
parties.’ Walter v. U.S. 447 U.S.649, 656 (1980) (plurality opinion). Kitzhaber asserts, and the government does
not dispute, that he and DAS came to an agreement that his personal email
accounts would be segregated on Oregon's servers and not distributed `without a
court order or other legal process.’ There is no evidence in the record, and no
assertion made by the government, that DAS or anyone else has opened or
examined the contents of the email on Kitzhaber's personal accounts.
Kitzhaber's claim to a reasonable expectation of privacy in the contents of the
emails is therefore not undermined by Oregon's possession of the emails.

In reGrand Jury Subpoena, supra.

The Court of Appeals, though, also found that

Kitzhaber's privacy claim lacks force,
however, with respect to any emails transmitted through his personal email
accounts but concerning official business. Oregon's public records law, OregonRevised Statutes § 192.410 et seq.,
which applies to `every state officer,” grants a general right to the public to
inspect “any writing that contains information relating to the conduct of the
public's business.’ §§ 192.410, 192.420. Kitzhaber has acknowledged that he
instructed DAS to archive emails in his `official’ Gmail account to comply with
public records laws. The government has also offered evidence that the State of
Oregon's training for employees informs them that emails on personal accounts
regarding state business are not exempt from public records laws.

In reGrand Jury Subpoena, supra.

The opinion went on to explain that

[c]onsequently, whether or not
Kitzhaber had a subjective expectation of privacy as to emails on his private
accounts relating to official business, any such expectation is not a
reasonable one. `[C]ompliance with state open records laws . . . bear[s] on the
legitimacy of a[ ] [public] employee's privacy expectation.’ City of Ontario, Cal. v. Quon, 560 U.S.746 (2010). While the existence of an
open records law may not be conclusive in all cases, it is conclusive here. The
public interest in open and transparent governance is at its zenith when it
comes to the state's top elected official and his communication with senior
advisers regarding official business. Even if state officials expect to evade
those laws through the use of personal email addresses, that expectation is not
a protected privacy interest.

Kitzhaber therefore had a reasonable
expectation of privacy regarding emails on his personal accounts unrelated to
official business. Because the subpoena was in no way tailored to the
investigations being conducted, it included those purely private emails. Again,
the district court had the supervisory power, and responsibility, to quash the
vastly overbroad subpoena, and thereby prevent the trampling of Kitzhaber's
reasonable expectation of privacy.

In reGrand Jury Subpoena, supra.

For these and other reasons, the Court of Appeals reversed
the lower court’s ruling and remanded the case “for further proceedings
consistent with this opinion.” In reGrand Jury Subpoena, supra.

You can, if you are interested, read more about the case in
the news stories you can find here, here, and here.